New COAH rules set stage for new battle: Developers, advocates leery of new guidelines

Hearing that may come as no surprise, but the decades-old battle will re-emerge this week when new rules from the Council on Affordable Housing take center stage in Trenton. On Wednesday, the agency will open a public hearing for the proposed guidelines on how towns can meet obligations for providing low- and moderate-income units.

That's likely to bring new backlash from both developers and affordable housing advocates, experts say — and a new round of litigation for an agency that has spent a nearly a decade in court.

“I expect the rules are going to be challenged, as proposed,” said Edward Boccher, a land use and redevelopment attorney at DeCotiis, FitzPatrick & Cole LLP. “The real challenge, particularly from development industry's point of view, is going to be that the rules on their face understate the need for affordable housing in the state.”

The unending debate over COAH's guidelines has long frustrated developers, who say many local governments have hidden behind the controversy to stall multifamily development. Boccher said clients have raised questions about the latest rules, especially the data the agency used to calculate the new obligations.

The council, a product of the 29-year-old Fair Housing Act and the landmark Mount Laurel court rulings, unveiled its latest guidelines in April. The rules said the state needs another 110,000 units to cover previously unmet affordable housing needs, as well as current and future needs.

Previous versions of the rules dating back to 2004 have been challenged by affordable housing advocates, prompting the state Supreme Court to order revisions last fall. Insiders believe COAH will adopt its new rules later this year.

With the upcoming public hearing and a comment period that runs through Aug. 2, the agency is likely in store for a fresh wave of criticism from the business community, especially multifamily developers.

David Fisher, the president of the New Jersey Builders Association, said in a statement to NJBIZ that his group “remains committed to working to institute a system which will enable the state to establish an effective and sustainable affordable housing policy, which provides for a variety and choice of housing for all people, especially lower income households.”

Fisher, however, isn't sure that will happen at this point.

“Unfortunately, we have many concerns with the COAH's newest proposal and believe it misses the mark on capturing the essence of the Mount Laurel doctrine,” he said. “It is our hope that the stakeholders can come together over the next few months to find a workable and constitutional solution to an issue that has plagued the construction industry for decades and has restricted the state's economic and social growth.”

A spokeswoman for the Department of Community Affairs, the parent agency for COAH, declined to comment last week.

Boccher, who represented the agency in its early days when he worked for the state attorney general's office, said COAH has reduced some towns' obligations in its newest rules. But those reductions seem to be based on the simple fact that they have made little progress in creating affordable housing to date, he said, without taking into account the loopholes they've used to avoid building it.

“I think those types of nuances and adjustments in the rules are things that people are going to challenge,” he said. “And I think it's a question of whether or not the courts have the stomach to wade into this and take a good hard look at it, or whether they just want to defer to the agency.”

Already, the advocacy group Fair Share Housing Center has filed lawsuits challenging the newest rules and seeking the release of documents used to prepare them.

One thing is clear: anything that extends the debate over COAH's rules will keep a thorn in the side of developers. Stephen Schoch, an architect who has been designing affordable housing in New Jersey for three decades, said what the industry wants more than anything is a little certainty.

“For the development community, I think what they want is stability and predictability,” said Schoch, managing principal of Kitchen Associates. “Not knowing is the worst thing, because if you know what the rules are, and you can count on that, then you can assess the risks of development.”

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Joshua Burd

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Josh Burd covers real estate, economic development and sports and entertainment. Before joining NJBIZ in 2011, he spent four years as a metro reporter in Central Jersey. Email him at joshb@njbiz.com.

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